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Refugee Laws in India: Need of the Hour

Updated: Jan 18

The Indian state has managed to treat a few of their refugee communities fairly well but has not managed to construct a well-defined refugee law in the country. The citizenship of the country is dealt with in part 2 of the Constitution of India under articles 5 – 11. Along with Part 2 of the Constitution, the primary laws dealing with foreigners in India are – The Registration of Foreigners act, 1939, The Foreigners Act, 1946 and The Foreigners Order, 1948.

The definition of a foreigner under The Foreigners Act, 1946 is ‘A person who is not a citizen of India’ and the same act gives power to the government to restrict the movement of anyone within the country who is termed as a foreigner under this act, limit employment opportunity and mandate medical examinations. However, on the other hand, the refugee convention of 1951 does not allow any government in the world to carry out these actions. so if we argue that India conforms with the international regulation related to refugees, it will be unacceptable.

Even though India is not a signatory to the Refugee Convention of 1951, it is a signatory to watchdogs like the United Nations and the World Convention on Human rights and related matters. In the absence of refugee law in the country, the existing laws of India are applied to the refugees and they are granted the same fundamental rights as the citizens of the country. The wide ambit of Article 21 of the Constitution of India ( Right to Life and Personal Liberty ) now includes the right against solitary confinement, right to medical assistance and right to shelter.

In the absence of legislation, the supreme court in ‘NHRC v State of Arunachal Pradesh’ had referred to Article 21 of the Constitution and asked the Arunachal Pradesh Government to perform the duty of safeguarding the life, health and well being of a Chakma residing in the state and their application for citizenship be forwarded to the authorities concerned.

There are four well-defined groups who are different from refugees –

  1. Temporary Residents, Tourists and Travellers – People who travel to the country for a specific short period of time with due authorisation from the origin country as well as the destination country.

  2. Criminals, Spies, Infiltrators and Militants – They are dealt with under the provisions of the Indian laws and can never be qualified as refugees.

  3. Illegal Economic Migrants – People who travel from one country to the other without due authorisation solely for the purpose of improving their economic condition

  4. Internationally Displaced Persons – Those people who are fleeing persecution and human rights violation from one country to the other.

India deals every kind of a foreigner on a case to case basis by applying certain existing Indian laws which leads to arbitrary decisions, preferential treatment based on political and economic motives which lack uniformity. The fact that India is a signatory to the United Nations and the World Conventions on Human Rights makes it all the more liable to formulate new legislation which solely deals with refugee laws as a need of the hour.

About the Author:

Kabir Harpalani, is currently Law from Amity Law School, Noida, Amity University.

You may contact them at - harpalani4@gmail.com


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